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© 2006 Wotkyns Creative
Dennis J. Boyle MD UCDSOM/Denver Health COPIC Risk Manager 2012
The Do’s and Don’ts of Malpractice: What Gets A Good Hospitalist Sued
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What is your lifetime risk of being sued?
20% 40% 60% 80%
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Goals
Identify the issues that lead to lawsuits Develop an awareness about what are the
problem areas Develop a skill set to help reduce medical
liability risk
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History
First described by Sir William Blackstone as mala praxis
Small bursts of suits from 1800’s till 1975 when the concept exploded
This coincided with rolling back of charitable immunity, informed consent, res ipse loquitur and the locality rule
Malpractice insurance companies form
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Two types of law
Criminal law has a standard of beyond a reasonable doubt
Tort (also called civil or personal injury) law has a different standard than criminal law - preponderance of evidence
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Elements of litigation
Duty Standard of care Causation Injury/Damages
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Standard of care
Was injury due to a failure of meeting the prevailing standard of care?
Compared to a reasonable practioner in the same specialty under similar circumstances
Breach of duty is defined by medical custom-the quality of care is through the testimony of experts in the same field as the defendant. This leads to dueling experts.
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Causation
Was the Doctors action the proximate cause of the injury?
To a reasonable degree of medical certainty
If the Doctor meets the SOC and an injury occurs no malpractice
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Injury/Damages
A doctor can be negligent but without damages there is no claim
3% of lawsuits have no injury ( 8% nothing physical) 1
Plaintiff attorneys start here Lawsuits from peak earners or babies
have the most downside
1 Studdert NEJM 2006
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Which case costs the most to settle?
45 Y/O MI, Failure to diagnose, patient dies
6 Y/O W/ Meningitis failure to diagnose, patient dies
16 Y/O Closed head injury, failure to diagnose, patient lives with brain damage
78 Y/O MI, Failure to diagnose, patient dies
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Only 6 States Currently OK
States Showing Problems
19 States Now in Crisis
Variable premiums
High premiums
Florida Illinois Michigan New York Connecticut
Low premiums
California Minnesota South Dakota Wisconsin Mississippi
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The real issue
Boyle TR 2007
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The lottery
In one year COPIC insures 6000 Docs Who have 4800 occurrences which leads to 700 claims of which 500 are dismissed w/o indemnity, leaving 200 of which 160 are settled, leaving 40 of which 36 are a defense verdict at trial and 4 are a plaintiffs verdict
COPIC data
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PCP risk by error type
Failure to diagnose - 60% Improper care or RX - 20% Medication errors - 10% Improper procedure - 10%
COPIC data
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PCP by diagnosis
Heads 6- 12% Hearts 14- 15% Guts 10% Bugs 12-14% Malignancies 14-16%
COPIC data
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Neck Pain
42 y.o female visits PCP c/o fever neck pain. She is felt to have some pain with motion of her neck. She is sent to the ED t o “r/o” meninigitis.
In the ED she has neck pain. She undergoes a CT of the head and cervical spine which are normal. A lumbar puncture reveals 125 WBCs 75% PMNs and a protein of 325 mg/dl gram-stain is negative and patient is admitted with a diagnosis of “aseptic meningitis” and treated with a cephlosporin.
Seen by the hospitalist PA and antibiotics D/Ced
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Bugs and Heads
Patient admitted given IV fluids, pain medication, Foley Develops extremity weakness over next 7 hours MRI of cervical spine shows discitis, vertebral
osteomyelitis and epidural abscess Undergoes debridement, fixation, but is left with residual
deficits
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Definition of the aseptic meningitis syndrome
CSF pleocytosis <1000 WBC Negative gram-stain Typically lymphocyte predominant
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Treatable causes of the aseptic meningitis
Partially treated bacterial meningitis Herpes meningitis or encephalitis Rickettsial diseases Parameningeal focus- epidural abscess e.g. TB, Fungal meningitis Cryptococcus e.g. Brucellosis,Leptospirosis Lupus cerebritis Vasculitis
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Chest pain
41 YO male with chest pain radiating to his arms HX of HTN
Looks well VSS EKG normal Better with a GI cocktail Normal treadmill 2 months before
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Chest pain
Returns in 12 hours to the ED with increased chest pain
Troponin 2.5 - Cath shows a 90% RCA lesion that is stented and patient does well
Age is not the key factor in cardiac disease GI is a high risk DX
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Failure to diagnose MI
1.1 million MIs annually With advanced technology miss rate has gone
down but 3-5% are still sent home from the ER 70% of patients no history of CAD Most frequent misdiagnosis GI or MS High index of suspicion Remember the triple R/O
PIAA claims data
Abdominal pain
6% death rate on abdominal pain patients over 70 YO
3% MI death rate
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51YO R/O MI
51 YO male admitted with suspicious chest pain. HX of smoking. CXR done as part of admission W/U. CXR is never seen by the ER MD or the hospitalist
Patient successfully R/O 12 months later he presents with hemoptysis CXR from a year ago read as a suspicious for CA
COPIC claims
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51 YO R/O MI
PCP, hospitalist, radiologist and ER Docs are all sued for failure to DX
COPIC claims
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Ambulatory care lawsuits
Missed breast and colon cancer most common cause of errors
Failures in ordering the wrong test, poor F/U, incorrect interpretation of results
Physician errors were in memory, knowledge and handoffs 1
Lining up of breakdowns leads to errors-Swiss cheese theory 2
1 Gandhi et al AIM 2006 2 Reason West J of Med 2000
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Problems
Systems failures Report not seen by the physician No documentation of what
patient was told about follow-up of test if results not received
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So how does a good Doctor miss such obvious diagnoses?
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PA and APN What’s the difference?
PA Colorado Board of
Medical Examiners “Dependent”
Practitioners Supervision always in
some form
APNs-NP, CNM,CRNA Colorado Board of
Nursing Sometimes
“Independent” Practitioners
Articulated plan May or may not be
employed by Docs
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Regulation PA
CBME Rule 400 AND 410 License Registration Form
Active until rescinded, so keep a registry of such forms, and inform CBME and COPIC when it changes
Nameplate– “Physician’s Assistant” spelled out 4 PA’s per physician maximum Notify CBME when relationship changes
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Primary supervisor PA - signs the paperwork
Primary Physician Supervisor “The physician who signed the form”. A PA has
one primary physician supervisor per employer, but if he/she has more than one employer, that PA needs a primary physician supervisor registered for each employer.
When in doubt liability falls to the primary supervisor
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Secondary supervisor PA – on site
Secondary Physician Supervisor No form is registered with the CBME PA consults Doc on a given patient encounter PA must document that physician’s name in that dated
record
Secondary Supervisor MIGHT assume the liability for that encounter “The surrounding facts and circumstances may result in the
secondary physician supervisor temporarily relieving the primary supervising physician of supervisory responsibility for the individual patient.”
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Discharge is the high risk time
62 YO female admitted with abdominal pain. Lesion found in spleen. Resection reveals abscess-MRSA. ID consult recommends 4 weeks of Vancomycin. 1 week later transferred to rehab.
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Discharge is the high risk time
62 YO female admitted with abdominal pain. Lesion found in spleen. Resection reveals abscess-MRSA. ID consult recommends 4 weeks of Vancomycin. 1 week later transferred to rehab.
Echocardiogram shows SBE. Report returns post discharge. Sent to the physician but he never sees the report.
NH PA has no records. Not sure as to why on Vancomycin and D/Ced after 2 weeks
Patient presents one month later with spinal abscess and paralysis
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Discharge is the high risk time
62 YO female admitted with abdominal pain. Lesion found in spleen. Resection reveals abscess-MRSA. ID consult recommends 4 weeks of Vancomycin. 1 week later transferred to rehab.
Echocardiogram shows SBE. Report returns post discharge. Sent to the physician but he never sees the report.
NH PA has no records. Not sure as to why on Vancomycin and D/Ced after 2 weeks
Patient presents one month later with spinal abscess and paralysis
Faulty info transfer- Doc, NP and MA could rescue
Hazards
Disaster
The system breaks down when the holes line up
Unsafe organization
Systems
Fail to recognize
Redundancy not setup
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Handoffs
Face to face Limit interruptions Receiver listens and doesn’t talk Standardize and simplify Unambiguous transfer of
responsibility Use common style with read
back SBAR
Patterson Int J qual HC 2004 Streitenberger Peds clinic NA 2006
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What gets a doctor sued?
Blame displacement 1
Concern about standard of care - prevent further injuries
Wants an explanation Accountability Mad at the Doctor Winning the lottery 2, 3
1 Baker Med Mal Myth 2006 2 Hickson JAMA 1992 94 04
3 Vincent Lancet 1995
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The real cause
Poor bedside manner Systems problems Bad documentation Knowledge problems
COPIC data
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The cure
Antenna up in high risk situations - heads, hearts and bugs Documentation Good follow up- failure to DX Cancer Good patient relationships 1
Lester West J of Med 1993
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Pearls - documentation
Legible No alterations Be careful of templates
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Pearls – No jousting
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Pearls - beware of the tail
50% of residents leave their first job in three years Today malpractice coverage is claims made which means
you are covered for the period in which you have the insurance. This means you need extra coverage for the time after leaving a job - this averages around 150% of a years premium
Who’s covering your tail?
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The real story
Too many injuries Takes 3-5 years and is an excruciating experience Compensation is erratic and goes to lawyers Destroys physician - patient relationships Determining injury is inherently subjective
This is a broken system!
Bovbjerg, Berenson Urban Institute 2005
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A rational system
Systems approach to safety Non court no fault based resolution 1
Structured awards and screening panels
Modify present rules on experts Disclosure with compensation
The real answer is a different system that gets money to those injured in a less stressful way
1 Brennan AIM 2003
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Thank you
Questions or Comments?
